Count me as a part of that population that rejoiced over the outcome in the Hobby Lobby case. It was a relief that the Green family, owners of the Hobby Lobby craft stores, and the Hahns, owners of Conestoga Wood Specialties, were delivered from the mandates of Obamacare; the mandates that compelled these families to cover abortifacients in the medical care they funded so generously for their employees. Justice Alito also did a notable service in making clear that a “corporation” is an association of “human persons”: Every association is directed to a purpose; and there is no principle that determines that this kind of corporation, alone among all other associations, may not be committed to moral and religious purposes, apart from the making of money. But the rejoicing over the decision could be amplified as the holding rippled outward quickly in the land: The Eleventh Circuit moved instantly to deliver the Eternal World Television Network (EWTN) from the threat of the mandates and the Little Sisters of the Poor seem safe now as well.
If I had been a member of the Court in the Hobby Lobby case, I would have written a concurring opinion, celebrating the outcome. But I would have registered the gravest reservation over the reasoning by which this good result has been produced for us. Judges such as Janice Rogers Brown in the Gilardi case (in the DC Circuit) and Diane Sykes in the Korte and Grote cases (in the 7th Circuit) managed to produce the same outcome in comparable disputes; but they did it without engaging in the gratuitous move of reducing “religion” to “beliefs” held “sincerely,” quite detached from the canons of reason and claims of truth. As my own friends have added their commentaries on the case, that dimension of the argument has been amplified, in a manner that only deepens the problem, for it gives us a jurisprudence that cannot give a coherent account of itself. It puts in the mouths of our friends sentences that would otherwise embarrass the urbane, and finally, it accomplishes the inversion of backing the conservatives into the very language and concepts of their adversaries.
During the litigation over Hobby Lobby in the 10th Circuit, the Green family professed its “sincere belief” that life begins at conception. To which some of us said: Belief? That proposition has been an anchoring axiom in the textbooks on embryology and obstetric gynecology. We should suddenly be hearing again the warning of John Courtney Murray: that the religious would back into the libeling of their religion by reducing religious convictions merely to “beliefs,” uncertain truths, which claim to be valid only for the people who share them. The Catholic position on abortion has not appealed to faith or revelation. It has been a weave of embryology and principled reasoning. No serious Catholic would come into court and say that he “believes” that life begins at conception. And so we’re faced with this oddity, which I’ve pointed out in my pieces: We may have an owner of a business, who disclaims any religious convictions, but he has reasoned his way to a moral objection to abortion with precisely the same reasoning used by the Church and Catholic writers. We might gather now that he would not be protected by the decision of the Court on Monday: He would not have a claim to be released from the mandates of the Department of Health and Human Services (HHS) in the way that the Greens and the Hahns would, even if he has a closely-held family corporation.
But take it one step further: The serious Catholic, who disdains to argue on the basis merely of “belief”–who insists instead on the “truth” of his conviction that abortion destroys a human life—he too may not be covered apparently by the judgment of the Court. For he offers no “belief,” and invites no one to test his “sincerity.” But when good people, such as the Greens and Hahns offer their beliefs, we are told by the Court that their beliefs will not be scrutinized. For as the Court observed, “it is not for us to say that their religious beliefs are mistaken or insubstantial.”
No one, of course, takes seriously the notion that the law would refrain from judgment when it comes to the sacrifice of widows on a funeral pyre, or the withholding of blood transfusions from a child, even if it were claimed, as a matter of “belief,” that these lives had spiritually ended. These words of the Court, disclaiming judgment, seem part of a Brigadoon-like world: they seem to flare into existence in the magic of the moment—only to evaporate when sedate reflection comes crashing in again.
The mantras of “belief” and “sincerity” are getting baked in already, even though they cannot carry the substance of any serious moral question. Our friends draw upon Justice Alito in assuring us that the federal government, in the management of prisons and other things, has cultivated a certain art in discriminating between sincere and insincere claims. Should we really be spending our legal genius in devising methods or tests to find out how serious or “sincere” people are as they invoke their “sincere” belief that the child in the womb is less than human, and that the laws barring abortion are violating their religious freedom? And we are not conjuring here anything implausible, for have we not in fact heard all of this already? If we are really testing sincerity, some of these cases could be determined with truth serum or a lie detector test. But who would take any of that as a “justification” for releasing people from the obligation to obey any law we regarded as defensible, whether a law that bars the killing of the unborn or racial discrimination?
But in these moments when magic words about “beliefs” are given a new loft, we find serious people backing into constructions that would on other occasions embarrass them. And so, getting with the program, one of my favorite commentators remarked about the Hobby Lobby case that:
The Court did not second-guess any of these beliefs [of the Greens or Hahns], nor did the Court judge whether these beliefs are right or wrong, true or false. The Court merely determined that the beliefs were sincere. In fact, the Court refused to render judgment, as the Obama Administration and Justice Ginsburg seem to have done, on whether the Hahns and the Greens had the “right” beliefs. Justice Alito notes that “HHS and the principal dissent in effect tell the plaintiffs that their beliefs are flawed.” But religious liberty, after all, is about “the right to be wrong” even in the pursuit of religious truth.
But as Aquinas and Lincoln both taught us, there cannot be a coherent claim of a “right to do a wrong.” It is one of those self-refuting propositions, which may be explained quickly in this way: People claim a “right to do a wrong” only when others are pressing on them, threatening to impose a policy they find objectionable. By saying that they have a “right” nevertheless to hold to their position, they are saying that people “ought not” impose their policy on them—which is to say, that it would be “wrong” of them to do it. But their adversaries now turn upon the complainers and point out that they too have this “right to do a wrong.”
When we find polished, accomplished people invoking now a “right to be wrong,” a line that cannot form a coherent ground of argument on any matter, we may see the signs of an argument soaring with metaphor, but now untethered. The concern here is deepened by the awareness that none of this was necessary in order to defend the Greens and Hahns from the imposition of these mandates from HHS. These families were being ordered to bear, at private expense, what the Obama Administration considers a public obligation. And they would become accomplices, at the same time, in policies that violate the principles that command their respect. As Judge Sykes pointed out in the Korte case in the 7th Circuit, the government could well have decided that there was a compelling public interest in diffusing contraceptives through the land. But it could have accomplished that end by offering tax incentives or even purchasing those contraceptives and giving them away. And yet in that case, as Matthew Franck notes in Public Discourse, the government would have to take on the constitutional discipline of raising the money and justifying to the public the taxes it would have to levy to raise the money. But it was critical for Mr. Obama and his party to insist that no taxes would be raised in order to provide these vast public benefits. Those benefits would be supplied by shifting the costs to the owners of private businesses. This is the sort of thing that would have sounded in the past all of the bells and whistles: that we are in the presence of “class legislation”—we are transferring assets from Person A to Person B, and in that way circumventing the discipline of the Constitution, and perhaps the Takings Clause of the Fifth Amendment.
It is worth pointing out, in this vein, that this mode of reasoning was available to us—and remains available—even without the Religious Freedom Restoration Act (RFRA). Yes, Judges Sykes and Brown, and Justice Alito, could say in the language of RFRA that the government should seek the “least restrictive means” of accomplishing a legitimate end. But Richard Epstein (and I) would argue that the same test would come into play when the government restricts freedom in any domain. Judges understood and applied these principles long before RFRA, and they do not need RFRA in order to do it even now.
Years ago, when some of us were arguing for the Defense of Marriage Act, we pointed out that, if marriage were detached from the purpose of begetting, there would be no rationale confining marriage to a coupling. It would be hard to see any principled ground for denying marriage to polygamous and polyamorous ensembles. Some of our opponents sought to meet that argument by insisting that we were being overwrought, for they saw no likely burgeoning of an interest in polygamy. But they were missing our point: We were not making a prediction; we were simply making an argument in principle—namely, that there would be no principled ground any longer for denying those other forms of “marriage.”
I raise the point here because I think some of our friends may be slipping into the same misreading when it comes to Ruth Ginsburg’s dissent in Hobby Lobby. Justice Ginsburg drew out these implications that could possibly spring from the decision of the Court as we encountered:
employers with religiously grounded objections to blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus); and vaccinations (Christian Scientists, among others)?
Some of our friends have accused Justice Ginsburg of wild speculation here because they doubt these cases will arise. But our friends may be replicating the confusion between predictions and principles: Ruth Ginsburg should be read not as offering a prediction, but daring us to explain the ground of principle on which we would deny these claims, made on the basis of “belief.” I think that my side could well provide an answer for most of these challenges: We would point out that one set of things (abortifacients) involves the taking of a human life, while the others threaten no injury of that magnitude. But we do not say we “believe” that abortifacients destroy a human life; we assert it as a truth, supported by biology and principled reasoning. In other words we answer Ruth Ginsburg by removing the argument from the domain of mere beliefs. We return the argument to the domain of reasons tested for evidence and truth. But we cannot evade the force of Justice Ginsburg’s challenge if we say, as Justice Alito said of the Greens and Hahns, that “it is not for us to say that their religious beliefs are mistaken or insubstantial.” The same thing could be said on the part of the employers conjured up by Justice Ginsburg—unless we move from Justice Alito’s unwillingness to gauge the plausibility of the claims that are offered to us under the banner of “beliefs.”
And there we reach, I think, the final inversion here. For years those of us who have argued the pro-life side have encountered the insistence that our moral objections to abortion involve nothing less than the imposition of our “religious beliefs” on others. In response, we have insisted over the years that a moral argument cannot be reduced to mere beliefs; that it is woven of evidence and principled reasoning and ever subject in turn to challenge and testing on reasoned grounds. But now, if we take our friends seriously, the Greens and Hahns are to be defended only by insisting that their moral argument is translated into claims of belief, and those claims are not to be tested with the canons of evidence and reason. With that move, I submit, we would be absorbing the upside-down concepts of our adversaries. Legislating on abortion would be done then on the basis of nothing more than “beliefs” held “sincerely.” We would indeed be imposing our religious beliefs on others. What should be expected in return is the same argument over “sincerity” that has been accepted as decisive in the Hobby Lobby case. And we can be sure of this: there will be no need for ingenious scales, subtle and elaborate, to establish that the people who deny the human standing of the child in the womb are fully, incorrigibly “sincere.”
I’m afraid, then, that we have been bedazzled by the outcome in Hobby Lobby, and too reluctant to speak the plain truth: that this is a jurisprudence that cannot give a coherent account of itself. I feel nearly like Brooks Atkinson reviewing a Broadway show years ago and remarking that “I’ve knocked everything in this show but the chorus girls’ legs, and there nature anticipated.” My reservations have run deep, and yet I would post one more warning: Lewis Powell, in the Bakke case, dropped the word “diversity” into our cases, and that word, taking wing, has created a new industry in the academy, spread its corruptions now throughout the land.
I’d beg my friends to take a sober second look, to be far more careful before embedding in our law these claims to “rights” or “rightful liberties” depending on “beliefs” that may not be tested for their truth or coherence—and from those materials fashioning a law for us on a matter of deep moral consequence. This is the kind of thing that may not only disfigure our jurisprudence, but corrode the minds of the next generation of lawyers, who will make it their business to learn this new “beliefspeak.” To mix the metaphors, we may be drawn here to “fool’s gold” and find ourselves playing with fire.